Copyright: Creative is as creative does

Most of my writing here about copyright law concerns the misuse and abuse of its heavily pro-plaintiff provisions such that there is little or no incentive against the filing of meritless claims of infringement. In particular I have focused on scams such as Righthaven, the now-defunct copyright trolling operation, and the use or threatened use of attorneys’ fees and statutory damages as part of such claims. Often these components are wildly out of proportion to the loss suffered, though anyone familiar with the pre-digital copyright regime understands that this is meant as a feature, not a bug. If it were otherwise, casual infringement of typically non-wealthy creators would be a completely rational, if unethical, business practice, and the cost of the odd successful attempt at compliance would easily be absorbed as a cost of doing business. And that odd attempt would be odd indeed, because without providing an incentive to attorneys to represent creators in such situations, they would have very little leverage over infringers.

My concern has always been when we move from “leverage” to arbitrage, which was what we had with Righthaven. On the other hand, as a former journalist and author, and a person who often represents creators, I have, as regular readers know, never been sympathetic to the “information wants to be free” non-sequitur. Creative works are not merely “information”; even “information” can be proprietary under many circumstances; and neither information nor art, in any case, has any desire for freedom or for anything else, even chocolate.

So, what is the geometry here? There are creators of works subject to protection by copyright — authors, producers of visual works, songwriters, musicians and others. There are distributors of content, who usually pay creators a pittance for their work but have the capital, technology and market access to exploit its value well. There are consumers of content, who may or may not pay the legitimate price for their consumption.

And then there are the others: The purported fair users, the search engines, the homage-payers, the derivative-workers. They are not quite consumers, but unquestionably many of them profit from creative works. Does copyright contemplate that they should be able to do so, or not?

Yesterday, the House Judiciary Committee held a hearing meant to lay some of the groundwork for overhauling copyright law in the United States. The title of the hearing is “A Case Study in Consensus Building: The Copyright Principles Project,” suggesting that the “project” is about establishing premises and ground rules for how the debate might be framed going forward. I suppose because the word consensus is also part of the title, several lawmakers and the witnesses called to testify repeated the rhetorical question as to why debate about copyright has become so contentious. For authors and creators who actually use copyrights to forge professional careers and build businesses, this feint at decorum will elicit a justifiable sneer because it’s kinda like saying, “All someone did was spit in your eye, and I don’t know why we can’t now have a civil discussion about the principles of expectoration.” Of course, there weren’t any authors or creators present at this hearing, and that in itself has been cause for concern.

For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy. Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet. Some disadvantage? Like a lone Boy Scout would be at some disadvantage fending off a mechanized armored division. The thing about consensus is that you can’t ask for it if you’re going to propose a foundation of “principles” predicated on lies and half truths. The correct answer to the question asked of Professor Samuels is “Individual artists don’t stand a chance of protecting their rights on the internet; they might as well shout their grievances into the next passing hurricane for all the remedies and resources at their disposal.”

Chairman Bob Goodlatte (R-Va.) plans a hearing on Thursday before the House Intellectual Property subcommittee to pursue his worthy goal of copyright reform.

The hearing is called “A Case Study for Consensus Building: The Copyright Principles Project” and focuses on a group called the “Copyright Principles Project” that produced a white paper called “The Copyright Principles Project: Directions For Reform.”

There are no creators involved in the Copyright Principles Project at all! None. As in not one.

The Internet has democratized creativity, but this group of Big Tech and Big Media companies and the lawyers and academics who love them is about as undemocratic a “consensus” as any artist could imagine.

Creators are the most affected by the “Project’s” many proposed changes to copyright law. But creators were apparently not even considered as eligible to participate in discussions with these elites.

Let me give you one small example from the many proposals — copyright registration and orphan works. Had they been included, photographers could have explained that they typically take hundreds of photographs in a single photo session. The registration recommendation in this report would require photographers to register each and every photograph with a government registry to protect against “orphaning”— the use of a copy of their works by someone who can’t seem to find them.

This registration idea has been around for quite a while. The pitch to artists is never from other artists — it’s usually pitched as a good thing because the Internet would unleash a torrent of untold riches if people could just find you. This must be someone’s idea of a joke, because if the Internet has unleashed anything on artists, it is not a torrent of people trying to pay us. It’s another kind of torrent — a Bit Torrent.

This registration issue is tricky — they can’t condition the right to copyright itself on registration because I’m told that would probably violate international law and land the U.S. in yet another arbitration (remember the Fairness in Music Licensing Act?). So a registration just allows your work to be exploited if the people who want to use the work can’t find you — even if they look really, really, really hard. That idea is something that any artist could have told the “Principles” elites was … well, incorrect. Had we been asked.

There are plenty of ways to find musicians, songwriters and recording artists right now. The problem isn’t that we can’t be found. The problem is that only the honest people want to look for us.

The market has already produced a solution to this. Artists who want to be found have registered with Getty Images, ASCAP, Flickr, BMI, SESAC, SoundExchange or Deviant Art and can continue to do so. Who benefits, then, from this registration requirement?

Big Tech. A Google lawyer told the Copyright Office that Google was interested in millions of orphans. In these recommendations, the person doing the looking has no incentive to actually find the artist because they benefit economically by failing to find artists.

I wonder.
Is it really fair to say that “only the honest people” want to, or can, locate the authors of original works who are not part of the syndicates listed in that quote? It is problematic, at first blush, that by the second click into his article Lowery ends up arguing over how his rights would be limited if a vile person made unauthorized use of pictures from one’s family photo album. “So are we all gonna have to register our family photos with Big Brother in order to keep control of them?,” he asks.

I was following until about … there. Family photo album scenarios, it seems to me, are the last refuge of scoundrels in copyright debates. But there is no question that digitization has made a mess of things, and that creators have less control over their works than ever before — something we all noticed a long time ago. Lowery is on firmer equitable ground when he complains as follows about the practical ineffectiveness of the DMCA for photographers and songwriters:

For the uninitiated this is a-Whack-a-Mole game of “notice and shakedown” that creators can never win. I personally have to issue hundreds of take down notices to infringing sites each day (or hire a service to do this for me). Most of these sites then claim to remove the infringing file, but often within hours the identical file re-appears on the same site.

What to do?

One approach might be to start at Square One and take a serious look at what the Copyright Act at least purports to protect, and what it doesn’t, so that we don’t get bogged down in arguments about baby . Next month I have oral argument in Ochre LLC v. Deutschebank, an appeal from a case where the Southern District of New York deemed a line of fairly famous, recognizable, original and creative lighting fixtures by my client, Ochre LLC — called the “Arctic Pair” — unprotectible on the ground that they are just lighting fixtures. For all practical purposes, I argue on the appeal, the present position of the courts is that any artistic (sculptural) work that may have the property of providing illumination cannot, by virtue of shedding light, be a creative work — and that this was never the intent of Congress. We seek to overturn both the dismissal of the copyright claim under Fed. R. Civ. P. 12(b)(6) and the original determination of the Copyright Office that the work could not be registered.

On the other hand, I also represent the creators of photographic works. In another case that I am not going to specify here, my client is somewhat bogged down in problems arising from the status of his registration, or inability to register, some of his photographs (which he undertook to do prior to engaging me). The registration of works, as Lowery notes, is the be-all and end-all of copyright remedies. He also states, however, the following:

Let me give you one small example from the many proposals — copyright registration and orphan works. Had they been included, photographers could have explained that they typically take hundreds of photographs in a single photo session. The registration recommendation in this report would require photographers to register each and every photograph with a government registry to protect against “orphaning”— the use of a copy of their works by someone who can’t seem to find them.

This is an odd juxtaposition to me. The way many courts interpret current law, if Da Vinci stuck a night light in the Mona Lisa’s mouth, he could not own the copyright in his painting of her if it were created and published in 2013. On the other hand, photographers have an annoying problem: It’s a real pain for them to go through the trouble of registering the hundreds of “creative works” they create in a single photo session.

I’m a photographer too, okay? I put my pictures on Flickr and sometimes people want to use them, and in return for attribution, I let them. The fact is, some people think some of the shots are pretty good — in many instances they are, I also believe subjectively, truly creative and original. So I am entitled to control their use, even though I publish them for free. Sometimes people use them without permission, and this makes me sad, but I do not try to make a living from my photos. I merely seek to brighten your dark lives with my creative brilliance.

Other people, however, do want to make a living taking pictures. Power to them. But especially in light (*cough*) of the situation faced by my client, Ochre, which can’t even register truly original creative works that cost a fortune to create, it’s a little hard to feel sorry for people who have to go through the trouble of registering all those photographs, those hundreds of creative finger-twitches, in order to be able to protect them fully. In fact, as David Newhoff argues, somewhat seeming to miss the implications of his own words:

So, again, the premise issuing from the chamber and reverberating on Twitter is predicated on smart sounding academic theory (i.e. simplifying a law) entirely untethered to a real or pragmatic world view. The premise being proposed is that copyright ought to be easier to understand for any layman because it is now “everyone’s issue” because in the digital age, “we are all authors.” This was the oft-repeated theme of live tweets by Gigi Sohn, President and co-founder of Public Knowledge and echoed at least once by Mike Masnick of TechDirt. Of course, the truth is that just because the internet fosters a lot of production of stuff, that doesn’t make us all authors anymore than corporate softball teams make us all ballplayers. On my best day, I don’t write as well as many authors I admire deeply; and on my worst day, I’m better than many a citizen whose claim to authorship is the possession of a smart phone and a pair of thumbs. . . .

[H]ad there been any creators asked to testify, they would have clearly demonstrated that academics like Professor Samuelson don’t know the first thing about the production of creative works or the nature of protecting them. Somehow, all this translates into the failure of congress to understand the internet, but maybe it’s not that so much as some of the ideas being presented are kinda dumb and transparently self-serving.

I don’t know how the fact that we’re all “authors” does or does not cut across the geometric lines that connect and dissect the various interests aligned and opposed with respect to copyright. I do think, however, that my example of what seems like an inexplicable inequity, i.e., the Arctic Pearl-vs.-snapshot copyright dichotomy, suggests that we’re not even starting with a realistic reckoning of what constitutes creativity, much what it make take properly to protect it. Rather, we’re fighting — just as we see in trademark — over extant rent-collecting regimes that reflect all sorts of historical and technological developments that have nothing to do with fairness at all.

That’s a mistake. We should have creators at the creation of any new copyright regime, and we should listen to what they have to say. But we should also prepare them to defend why their creativity is as entitled to the range of protection they demand for it. I don’t know how to measure units of creativity (are they like the “utiles” we learned about in economics?). Newhoff, rejecting what he clealy views as a copyright-nihilism point of view that argues for simplicity but essentially stands for a very weak copyright regime indeed, writes, “More to the point, though, if technology has made the world of consuming content more complex, is it disingenuous to suggest that revising copyright to balance the rights of authors and consumers in the digital age would not produce an even more complex set of statutes?”

I think it would. But copyright enthusiasts across the arts implicated should be careful what they wish for on that score. The debate could prove very enlightening.

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2 thoughts on “Copyright: Creative is as creative does”

I am far from expert on this, but I do analyze information and communication networks, as well as generate proprietary ideas, products and content from time to time. So I face these issues often directly and indirectly.

My sense is that apples and oranges are being confused here; namely the “act” of creation/invention and the distribution/monetization of that knowledge/work. True, both require significant energy and investment, but in a free market economy none of us are guaranteed a return on that investment.

All too often, the apples and oranges are liberally and generously confused by the distributors or bottleneck gatekeepers of said content/invention. The law mostly sides with and benefits those distributors and not the originators. Many of the disruptive systems that have developed over the past 30 years since we began to liberate information networks from natural monopoly notions ascribed to from 1913 to 1983 (and even, unfortunately, adhered to today) have done more to create generative ecosystems that ultimately benefited the producers of content/inventions more than the previous, government supported, monopoly distributors.

This thinking can be applied broadly to “digital” and “analog” products. In an information economy everything can be virtualized. I was at a 3D printing seminar last night and it became very apparent that original manufacturers would try to repress the invention of an ecosystem of “replacement parts” so as to continue to mine their “original invention” instead of considering the tremendous cost savings and generativity and expansion of product ecosystems that would result in a healthy market of replacement parts built at the edge, instead of at the core. The solution, is to find a disruptor with a vested interest and the scale to implement change. In this case, insurance, warranty and retail companies, that will find the old manufacture-centric approach to be antiquated in this new digital order.

What is missing here is an understanding of the conflict between the old order (analog, vertically integrated, average costed/priced, nonscalabeable business models) and the new economy that seeks to unbundle and achieve massive network effects to rapidly scale and amortize capital and business models that obsolete rapidly (defined as digitally priced, horizontal, scaleable, and open).

Instead of hiding behind patent, copyright and network access regulation and subsidies/taxes, producers and distributors should accept change as constant and adapt. One way is to develop industry-led open, generative exchange models and reduce the actual amount of government intervention, as the latter accomplishes little in the way of risk reduction and higher returns. On the contrary it tends to increase and decrease both, respectively. The result will be for the market to best determine the rewards for the producers and distributors of goods and services.

Great comments, Michael. To the extent that my piece reflects an apples-and-oranges false comparison, however, I would submit that this is a failure of my presentation, because in fact I was trying to make a point right along those lines. In other words, I tried here to shift the axis of analysis from “digital vs. analog” or “creators vs. distributors vs. consumers” to a far more fundamental one: Is all creation, as currently defined under the Copyright Act and the cases interpreting it, entitled to the same level of protection?

If we are in the process of unbundling, etc., I suggest we unbundle everything. As you say, not only monetaization but creation “require significant energy and investment, but in a free market economy none of us are guaranteed a return on that investment.” When we allocate rights and rent, particularly in a category of intangibles, arguably the more granular we can get in attaching value, or rather ways for the market to assess value, to “creative works,” the more efficient the outcome will be almost regardless of how we allocate presumptive rights.

About the Title: The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

As for me, I'm Ron Coleman, an AV-rated partner at Archer - Attorneys at Law,** a firm of about 180 attorneys with offices in NJ, NY, PA and DE (but active nationwide). I've been called an "IP maven" but I'm really a commercial litigator with a special interest in copyright and trademark infringement claims involving the Internet, including advising clients how to avoid them or - if necessary - how to make the other guy wish he had.

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